Construction Pacific Management v Bianco (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONSTRUCTION PACIFIC MANAGEMENT v BIANCO (No.2) [2005] FMCA 460

BANKRUPTCY – Bankruptcy notice – whether the inclusion of 4 documents attached to the notice some of which refer to the applicant by a different name could confuse a debtor – whether differences of amount claimed and inclusion of unclaimable amount could confuse debtor – whether failure to serve notice under s.41(5) Bankruptcy Act – prevent claim that notice is likely to mislead debtor as to what is required for compliance.

Bankruptcy Act 1966, ss.41(5), 52, 306
Legal Profession Act 1987 (NSW) s.208J

Stephen William Clancy v Dale Robinson [2002] FMCA 47
Touma v Gold Holdings [2002] FMCA 233
Trevor Peter McSwiney; Ex parte Mark Sydney Davies (Federal Court unreported 24/11/1986)
Kleinwort Benson Australia Ltd v Crowl 79 ALR 161

Applicant: CONSTRUCTION PACIFIC MANAGEMENT PTY LIMITED

Respondent: SERAFINO (PHIL) BIANCO

File Number: SYG3338 of 2004

Judgment of: Raphael FM

Hearing date: 29 March 2005

Date of Last Submission: 29 March 2005

Delivered at: Sydney

Delivered on: 29 March 2005

REPRESENTATION

Counsel for the Applicant: Mr A Bouris

Solicitors for the Applicant: Baron & Associates

Solicitors for the Respondent: Proctor Phair Lawyers

ORDERS

1. Petition dismissed.

2. Applicant creditor pay the costs of the respondent debtor to be taxed, if not agreed, in accordance with the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3338 of 2004

CONSTRUCTION PACIFIC MANAGEMENT PTY LIMITED

Applicant

And

SERAFINO (PHIL) BIANCO

Respondent

REASONS FOR JUDGMENT

1. These proceedings are an application for a sequestration order against a debtor whose name is Serafino (Phil) Bianco.  Mr Bianco the debtor, seeks the dismissal of the petition on the basis that the act of bankruptcy upon which it is founded required the compliance with an invalid bankruptcy notice.  The debtor also argues that he is solvent and that I should exercise my discretion not to sequestrate his estate.

2. I was advised at the commencement of the proceedings that the applicant was not in a position to prove the formal matters under s.52 of the Bankruptcy Act 1966 and so I have dealt first with the arguments concerning the bankruptcy notice.

3. The bankruptcy notice is numbered NN1203/04.  It is addressed to Serafino (Phil) Bianco described as the debtor.  It states in paragraph (1) that the debtor owes the creditor a debt of $42,517.32 "as shown in the schedule".  The schedule sets out the amount of the judgment or order which supports the notice.  In column 2 of the first part of the schedule it states that the amount of judgments or orders is $42,517.32 and that is the figure for the total debt owing.

4. Paragraph (2) of the bankruptcy notice states:

   “The creditor claims that the debt is due and payable by you.  A copy of the judgments or orders relied upon by the creditor is attached.  At the time of applying for this Notice, execution of the judgments or orders had not been stayed.”

   There is attached to the Bankruptcy Notice the…